This appeal to the High Court concerned orders made for the return of two boys to Australia from New York, where they remained after the conclusion of a holiday with the father, in breach of a parenting order which had been made by the Family Court of Australia. The father’s appeal was particularly concerned with:

The way in which the trial judge had taken into account the children’s wishes;

The interim living arrangements for the children upon their return to Australia.

The two boys were aged nearly 17 and nearly 15 at the time the interim orders were made by Watts J on 8 March 2016. Their sister was nearly 12 years of age.

In January 2016, despite the father not providing the period of notice required by the 2014 parenting orders, and under some pressure from him, the mother reluctantly agreed to allow the two boys to travel to New York for a holiday with the father. The girl was not included in the holiday. The boys were flown by the father, business and first class, to New York on 14 January 2016. By 25 January 2016 the father had decided that it was in his financial interests to remain in the United States rather than to return to Australia. On 29 January 2016 his solicitor informed the mother’s solicitor that the father had decided to live indefinitely in the United States and that the boys would remain with him.

The mother filed an application for the return of the boys, in addition to proceedings brought in the United States under the Hague Convention (which did not apply to the elder boy because of his age). The father did not seek any changes to the 2014 parenting orders and sought only to resist the mother’s application.

The evidence of the father was that the boys had each expressed a desire to remain living with him in New York. He wanted the hearing to be adjourned so that an expert in New York could interview the boys and provide a report as to their wishes.

If the primary judge decided that they should return to Australia, a major question was where the boys should live on their return. This question was complicated by a number of factors. The father did not say whether he would return to Australia in the event that orders were made for the boys’ return. It was therefore not known whether the boys could live with him. The elder boy had been living with his father for some time after his parents’ separation and was effectively estranged from the mother, although she had attempted to maintain contact with him. The younger boy was living with the father, although he divided his time between the mother and father; and the daughter remained living with the mother but spent weekends with the father. The evidence was unclear as to the amount of time that the two youngest children were spending with each parent.

Accepting that one or both of the boys might elect not to live with her, the mother advised the Family Court that she would not oppose the boys living with the father’s mother, a course which the ICL appeared to consider acceptable.

The matter could not be resolved on the first hearing date before the trial judge and was adjourned. Counsel for the father filed further evidence of conversations with the father’s mother, to the effect that, due to her frailty, she was unable to care for the boys. The father made no submissions as to alternative possible living arrangements for the boys.

Two further options were considered by the primary judge to meet the contingency that the father did not return to Australia and the boys chose not to live with the mother. They were reflected in the orders made by the trial judge, who ordered that, in the event that the father returned to Australia with the boys, they could continue to live with him. If he did not return, the boys were to live with the mother if they chose to do so, or they could live in accommodation provided by the father together with paid supervision services, to which the mother consented in writing. Alternatively, each of the boys could live separately with the mothers of respective friends of theirs. The boys’ mother had obtained undertakings from the respective mothers, who each agreed to accommodate a boy. Collectively, these orders were referred to as “the interim parenting orders”.

Statutory provisions

The following relevant statutory provisions are in the FLA:

Section 60B(1) – The objects of the Part are to ensure the best interests of children are met by reference to certain criteria, which include ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

Section 60B(2) – The principles underlying the objects in s 60B(1) are that children have the right to know and to be cared for by both parents and a right to spend time with both parents on a regular basis.

Section 60CA – “In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”

Section 64C – “A parenting order in relation to a child may be made in favour of a parent of the child or some other person.”

Section 65D – “In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting orders as it thinks proper.”

Section 60CC – Section 60CC(1) – Requires the court to consider the matters set out in s 60CC(2) and (3), in determining what is in the child’s best interests. Section 60CC(2)(a) relevantly provides that a primary consideration is “the benefit to the child of having a meaningful relationship with both of the child’s parents”. Section 60CC(3) provides for additional considerations, which include:

“(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views”.

Section 60CC(3) states other additional considerations which are relevant:

the nature of the relationship of the child with each of the parents (s 60CC3(b)(i))

the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from his or her parents and any other child with whom he or she has been living (s 60CC(3)(d)(i) and (ii))

whether the practical difficulty and expense of spending time with a parent will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis (s 60CC(3)(e))

by having regard to anything contained in a report given to the court under s 62G(2); or

by making an order under s 68L for the child’s interests in the proceedings to be independently represented by a lawyer; or

subject to the applicable Rules of Court, or by such other means as the court thinks appropriate.

Section 60CE – “Nothing in this Part permits the court or any person to require the child to express his or her views in relation to any matter.”

Section 65C – “A parenting order may be applied for by:

either or both of the child’s parents;

the child; or

(ba) the grandparent of the child; or

(c) any other person concerned with the care, welfare or development of the child.”

The High Court stated (at [29], – [30]) that the issues to be determined were:

the trial judge wrongly discounted the boys’ views about remaining in New York because he formed an adverse view of the father’s actions

the trial judge was required to put in train a process by which the boys’ views as to each of the alternative living arrangements, and in particular their possible accommodation with other families, could be ascertained.

whether parenting orders could be made in favour of strangers to the proceedings who had not made an application for those orders themselves.

In relation to the importance of a child’s views, the High Court said (at [34], [38]):

“The focus placed by the father upon the prescribed consideration stated in s 60CC(3)(a) tended to elevate the views expressed by a child to something approaching a decisive status. In some cases, it may be right, in the exercise of a primary judge’s discretion, to accord the views expressed by a child such weight, but s 60CC(3)(a) does not require that course to be taken. They are but one consideration of a number to be taken into account in the overall assessment of a child’s best interests.

The terms of s 60CC(3)(a) itself may be taken to recognise that, whilst a child’s views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child’s age or maturity and level of understanding of what is involved in the choice they have expressed. Children may not, for example, appreciate the long term implications of separation from one parent or the child’s siblings. Section 60CC requires that attention be given by the court to these matters.”

The Full Court considered that the trial Judge took into account the boys’ views and the effects of the boys’ views and concluded that they were best dealt with through the intervention of the family consultant in Australia, via the mechanism which had already been established by the 2015 orders. The trial judge declined to have a “wishes report” undertaken in New York because he doubted its utility. He considered that the views expressed by the boys had been “contrived” by the father.

The father argued that adverse comments made by the trial judge about him, necessarily detracted from a proper consideration of the boys’ views and the paramount consideration of what was in the boys’ best interests.

The High Court considered that the father’s conduct was relevant to the children’s best interests (at [39]):

“It would have been remarkable if the primary judge had not commented upon the father’s conduct. It involved a breach of the 2014 parenting orders and it had the potential to undermine the possible relationships that family members might have in the future, a matter to which the processes put in place by the 2015 orders had been directed. Furthermore, the father’s flagrant disregard of the parenting orders was a matter relevant to the child’s best interests under s 60CC(3)(i). It evinced an attitude towards the responsibilities of parenthood that, if left unchecked, would likely send a poor message to boys who, on the evidence, were highly impressionable.”

However, the High Court rejected the argument that the trial Judge was motivated to give less weight to the boys’ expressed preference to stay in New York because of the father’s actions.

The father submitted that a dispositive parenting order could not be made before the views of the child were known concerning the particular parenting order. The High Court disagreed (at [43], [44]):

“Section 60CC(3)(a), whether or not read in conjunction with the other provisions in Pt VII, neither expressly nor impliedly requires the court to seek the views of a child. It requires that the views which have been “expressed” by a child be considered. The term “consider” imports an obligation to give proper, genuine and realistic consideration but this cannot affect or alter the terms of the provision so as to require a child’s views to be ascertained.

Section 60CD(2) provides a mechanism by which the court may inform itself of the views expressed by a child, but it does not do so in terms which would oblige the court to do so in every case. It certainly would not oblige the court to do so in the case of interim, temporary arrangements and in respect of each aspect of a parenting order affecting a child.”

It was relevant that the orders made for where the children would live upon their return from New York were interim orders and the arrangements temporary. Interim orders do not, of course, require as intense examination by the Court as final orders.

The High Court (at [46]) referred to the urgency of the return of the boys to Australia, in part because the boys were due to return to their schooling in Australia. It was not necessary to seek the views of the boys on every aspect of the interim orders affecting them, which, in any event, were hardly likely to assist the Court. It was clear “that the ascertainment of the boys’ views on these matters was not statutorily mandated.”

The trial judge took steps to ascertain the boys’ views, by leaving in place the 2015 orders concerning the family consultant, who could ascertain them after the boys’ return to Australia.

Parenting orders – “any other person”

The other contentions raised by the father were that the Family Court could not make a parenting order in favour of strangers to the proceedings where those people had not made an application and where there was no evidentiary basis to establish that they came within the list of possible applicants in s 65C.

The ICL’s response was that s 65C refers to a person’s standing to bring an application for parenting orders. The persons referred to in the order were not applicants for parenting orders. They were persons in whose favour such orders were made on the application of the mother. Section 64C provided that a parenting order may be made in favour of a parent of the child “or some other person”. The High Court agreed with these submissions.

The father submitted that there was simply not enough known about those persons to justify the making of that parenting order. The High Court rejected this argument and said (at [51]):

“Far from being strangers to the Family Court, the Court had information that the persons were mothers of longstanding friends of the boys; the Court had undertakings from the mothers to offer “nurturing and care” and to implement arrangements for monitoring homework and transport to and from school respectively; and the Court was aware of the proposed sleeping arrangements of the boys. It may be that more information would be desirable before making a long term parenting order in favour of such third parties. But, as has been emphasised, the present case concerned the making of interim orders in circumstances of some urgency. Plainly, in those circumstances, there was sufficient evidence to ground the making of [the] order …”